Case Study: Mediation in TfL – Resolving Disputes

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" Research suggests that the following issues may arise when introducing mediation and it may be useful to share some of the suggested risk mitigation solutions from experienced organisations such as the Ministry of Justice. " Mixter

In this article, Julia Mixter, Senior HR Business Partner in Transport for London, looks at the case for mediation, the process of introducing it in TfL and anticipates the issues that may arise.

What is mediation?
Mediation is as a form of dispute resolution in which a neutral third party, from inside or outside the workplace, helps people reach a mutually acceptable agreement. Mediators don’t impose a solution, but help the other parties settle their differences on their own terms. Mediation is informal, flexible, voluntary, morally binding, confidential and usually without representation. Only if all parties agree can details of the mediation be revealed to others.

What can happen during mediation?
Commonly, the parties meet separately with the mediator then come together to resolve the conflict – both putting their sides forward uninterrupted. The mediator summarises the main area of agreement and plans an agenda for the rest of the mediation. If there appears to be a deadlock, in order to break it, the parties may need to separate again.

The case for mediation
The Gibbons Review1 of workplace dispute resolution published in 20071 strongly recommended the use of mediation and other forms of alternative dispute resolution.

“The overall purpose of the recommendations is to bring about effective resolution of disputes as early as possible. The consequences of success would be less disruption to workplaces and to individual’s careers…..My vision is of a greatly increased role for mediation”.

The review challenged employer organisations to:

  • promote early resolution as a management tool
  • provide training to empower managers to resolve disputes in the workplace;
  • improve understanding and awareness of the value of third-party mediators
  • help resolve internal workplace disputes.

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Given that much of Gibbon’s paper recommends mediation as a way forward and to reduce reliance on over-burdensome procedures, it is perhaps surprising then that the ACAS code (April 2009) chose to only include a brief mention of mediation in the foreword. Admittedly, the accompanying 84 page guidance document mentions mediation on 5 pages, but a tribunal is, of course, only legally obliged to consider the code. Perhaps a system that is truly committed to reducing legislative bureaucracy may have tipped the balance slightly differently? However, Gibbons did also make the point that to be effective in the UK, mediation should be adopted on a voluntary basis and that is what many organisations are now doing.

The reasons for adopting mediation may seem obvious to most HR professionals. Among the most important are that differences and disputes at work lead to low morale and engagement. In turn, these have links to several outcomes including employee retention, productivity, profitability, safety, and customer loyalty2

Mediation in TfL – Why is TfL introducing mediation?
In keeping with the Gibbons review and changes to the ACAS code, TfL decided to introduce mediation as a voluntary process.
Historically, HR involvement in TfL finished when a formal grievance or bullying and harassment case closed. Often however, certain allegations were upheld but others weren’t. This process leaves both parties feeling aggrieved, dissatisfied with the outcome, but expected to continue working together with little further support. The knock-on effect is that bad will festers and more often than not leads to an increase in either lateness, absence, further grievances or performance issues. The impact on wider-team dynamics is significant.

Mediation provides a relationship-building approach which can be quick (more flexible timescales than grievance), positive (not seeking to apportion blame); and confidential (therefore less likely to impact the wider team).

Introducing Mediation
After establishing the business case, TfL assessed 4 shortlisted organisations. Total Conflict Management (TCM) were chosen as the best training organisation for TfL following evaluation that covered seven key criteria including accreditation, cost, and value added components. The trained internal mediators would hold the National Certificate in Workplace Mediation. Training is due to commence in October 2009

Anticipated Issues
Research suggests that the following issues may arise when introducing mediation and it may be useful to share some of the suggested risk mitigation solutions from experienced organisations such as the Ministry of Justice.

Anticipated Issue and Mitigation
Issue – Management/Unions feel sidelined
Mitigation – Communication and education – 25% of respondents to a CIPD survey3 say that communicating the aims and benefits of mediation is the single most important thing that could be done to promote wider use

Issue – Mediation just becomes a procedural hoop
Mitigation – Guidelines for using mediation pool are kept flexible

Issue – High cost with little return
Mitigation – Identify measures for ROI and conduct cost benefit analysis at regular intervals

Issue – Additional workload to already busy staff
Mitigation – Monitor time spent on mediation and consider additional members of pool

Issue – Disorganisation leading to disenchantment
Mitigation – Co-ordinating role – to speak to parties, make arrangements, arrange mediation pool

Issue – Lack of buy in from senior management – won’t release resources / funds
Mitigation – Good business case for bringing mediation in house and education

Issue – Mediation seen as another arm of HR
Mitigation – After initial pilot, mediators to be selected from all parts of business

Issue – Lack of experience
Mitigation – Base no. Of people to be trained on existing levels of grievances otherwise mediators don’t get experience and lose confidence

How does TfL compare to other organisations?
The CIPD findings from 766 responses to their survey3 were that 80% of organisations trained HR managers in order to handle conflicts, whilst c.50% said an external mediator was used when needed. 76% of respondents saw mediation as the second most effective method of resolving conflict, behind informal discussion.

Mediation was seen as most suitable for handling relationship breakdowns followed by bullying and harassment then discrimination – although an article in People Management ‘Pull Your Punches’ (13th November 2008) advises against using mediation in the case of a discrimination claim

Outcomes
Where mediation was used, 58% of respondents felt issues were partly resolved and 30% felt they were completely resolved

Conclusions
The Gibbons review has given organisations the research background upon which to base a more effective approach to dealing with conflict resolution. Mediation can contribute to building an organisational culture focused on supporting positive work-based relationships which is essential to high performance working practices. It is essential that organisations start to take bold steps to develop employee capability to have the personal resources to manage workplace conflict through discussion rather than relying only on procedures.

In October, Symposium events are arranging a Dispute Resolution conference. By that time, TfL HR advisers will be trained and mediation will have started – so we will be offering a personal perspective on introducing mediation – please attend to share our learning!

 

If you found this article interesting and would like to know more, Julie is speaking at the Mediation morning seminar taking place on 9th October in London.  To book your place, or find out more, visit: http://www.symposium-events.com/dispute/

 

References

1 A review of Employment Dispute Resolution in Great Britain, Gibbons M. 2007
2 (Harter, Schmidt, & Hayes, 2002; Harter, Schmidt, & Killham, 2003)
3 2008 CIPD Survey: Workplace Mediation

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